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judicial nominees

There are plenty of reasons to be outraged by Senator Shelby's decision to put a blanket hold on all executive branch nominations in an effort to steer more federal dollars to his state. After all, most people would agree that it's good for the country for the Senate to be able to move forward on key nominations to the Army, Air Force, Department of Homeland Security and Department of Defense.

Senator Shelby, of course, would rather have more pork for his state, but you'd think that even he would be outraged by the principle of refusing an up or down vote on nominations. After all, his own senate website rails against filibusters on judicial nominees.

As a U.S. Senator, I believe that the review of judicial nominations is one of the most important responsibilities of the Senate, and I firmly believe that each of the President's nominees should be afforded a straight up-or-down vote. I do not think that any of us want to operate in an environment where federal judicial nominees must receive 60 votes in order to be confirmed. To that end I firmly support changing the Senate rules to require that a simple majority be necessary to confirm all judicial nominees, thus ending the continuous filibuster of them.

And that's how he feels about nominations for lifetime seats on the federal bench. If he's that committed to guaranteeing up or down votes on nominees who will have their positions for life, then obviously he'd support up or down votes for nominees who serve at the pleasure of the president.

Yet Senator Shelby is still obstructing these nominees to gain political leverage for his own pet projects.

Last night, Patricia Smith, President Obama’s choice to be Solicitor of the Department of Labor, passed an important procedural hurdle: the Senate decided to vote on her nomination.

What’s remarkable is that, unlike past attempts to block votes on executive branch nominees, the vote was entirely along party lines. Even the so-called moderates in the Republican party, like Senators Susan Collins and Olympia Snowe, voted against allowing an up or down vote on a second-tier executive branch nomination.

For a party that railed against the use of the filibuster even in the case of judicial nominees, the hypocrisy is remarkable.

Perhaps, you think, Patricia Smith is far outside the mainstream, and the GOP was using it’s last tactic to stop an extreme nominee.

But filibustering a nominee like Smith for a position most people have never heard of in a department that is rarely in the news still requires some justification. After all, most of the GOP senators have been around long enough that they served during a time when such a filibuster would be unimaginable.

So they called Smith a liar.

Sen. Mike Enzi (R-Wy.), the ranking Republican on the Health, Education, Labor and Pensions Committee, led the pack, decrying her "lack of candor" and cited "discrepancies in her testimony." The issue -- which was really not, of course, the issue -- centered on a small pilot program in New York called Wage Watch, which aims to educate workers about the minimum wage is and when they are entitled to overtime. Republicans, during committee hearings, insisted that it was a Big Labor plot, but Smith said the idea had been generated within her office. It was later shown that apparently a labor representative had suggested it to an employee, who then suggested it to Smith.

The GOP also lambasted Smith for categorizing the pilot program as "educational" rather than "enforcement." Democrats pointed out that the distinction was an irrelevant one: The purpose of the education was to improve enforcement efforts.

The conclusion is obvious. The GOP, including so-called moderates, are obstructing nominations for the sake of obstruction, throwing sand into the gears of government and attempting to hobble the Obama administration by any means necessary. That tactic is irresponsible and unacceptable. Americans deserve better.

Senate Judiciary Chairman Patrick Leahy lashed out today at the unprecedented obstruction of judicial and executive branch nominees by the Republican majority. There are currently 12 judicial and 15 executive branch nominees on the Senate Calendar that the Republicans are stalling. Some, like Dawn Johnsen, as Senator Leahy notes, have been awaiting action for more than nine months. The last judicial nominee, whom Republicans delayed for six weeks, was confirmed unanimously by a vote of 97 to zero. Since that vote on December 1st, not a single judicial nominee has been considered by the full Senate. There are now more judicial nominees pending on the Senate calendar than have been confirmed all year.

The Republican agenda of delay and obstruction is clear. The price to the American people is also clear. With the range of critical issues before this Administration, the President needs his team at the Justice Department in place. And, with the 97 current and 23 announced judicial vacancies reaching record proportions, the threats to the administration of justice are serious. As Senator Leahy said, “Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.”

You can read Senator Leahy’s full statement here. And click here to read PFAW’s recent report on the obstruction of executive branch nominees.

Today, there was a panel at the Religious Action Center discussing the role of religious communities in debates over judicial nominees. Joi Orr, program assistant with People for the American Way’s African American Religious Affairs department spoke about the role of the religious vote and what People for the American Way is currently doing around judicial nominations.

Other panelists included: Nancy Zirkin from the Leadership Conference on civil rights, Jim Wimkler from the general board of the United Methodist Church, Holly Hollman from the general counsel of the Baptist joint committee, Sammie Moshenberg from the National Council of Jewish Women, Rick Foltin from the American Jewish Committee and Mark Pelavin from the Religious Action Center.

Panelists briefly discussed how their organizations reach various faith communities, and reiterated the importance of having strong judicial candidates for these lifetime position. Joi summarized the work that the African American Religious Affairs department is accomplishing with regards to judicial nominations.

The ministers programs were founded to act out of the prophetic vein of the Black Church. So I will say, that we do not claim to speak on behalf of the entire black church, because it is not a homogeneous group. We particularly advocate and represent the marginalized, disenfranchised, and outcast. So like the prophet Rev. Dr. Martin Luther King Jr., we advocate with a liberal reading of the Bible in one hand and the Constitution in the other. That’s what the prophetic black church has done throughout history. We rejected the “slaves obey your masters” rhetoric of the New Testament, while embracing the nation’s sacred documents that purport to stand for liberty and justice for all. And I want to underscore the word all. Because the truly prophetic black church is inclusive in its advocacy. That’s why MLK was an integrationist. That’s why as an organization we work on fair public education for all of our children, fair comprehensive immigration reform, and LGBT rights, because injustice anywhere is a threat to justice everywhere.

Dawn Johnsen, President Obama's nominee to head the all important Office of Legal Counsel at the Justice Department, has been awaiting action by the full Senate since mid-March.

David Hamilton, President Obama's first judicial nomination, has been waiting since the beginning of June.

Marisa Demeo, nominated to be an Associate Judge of the Superior Court of the District of Columbia has been waiting since the end of May.
These are just three of the 15 Justice Department and Judicial nominees that Republicans have been stalling for months! "The Senate has to do better," says
Judiciary Chairman Leahy — and we couldn't agree more.

Senator Inhofe announced earlier this week that he would filibuster the nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals. And on the Senate floor he elaborated—he said this was because, in a case involving a ban on the Indiana House of Representatives’ use of opening prayers to advance a particular religion, Hamilton placed limits on prayers that used Christ’s name, but, according to Inhofe, said that invoking the name of “Allah” would be permissible.

There are two major problems with Senator Inhofe’s announcement.

First is the senator’s statement, back in 2005, that filibusters of judicial nominees were contrary to the Constitution. Of filibusters of judicial nominations he said: “I don’t think it should be used where it is contrary to the Constitution.” If you watched Rachel Maddow last night you go this point loud and clear. You can’t have it both ways – the Constitution didn’t change between 2005 and 2009; what changed is the President making the nominations.

The second is the Senator’s gross misreading of Hamilton’s opinion. As noted in an earlier post, Hamilton never ruled that prayers to Christ were impermissible, while Muslim prayers were permissible. What he said was that any prayers that advanced a particular religion were impermissible and that on the record before the court, the official prayers being offered in the Indiana House “repeatedly and consistently” advanced the Christian belief in the divinity of Jesus, but that the single instance of a Muslim imam offering a prayer was not distinctly Muslim in its content.

In a ruling on a post judgment motion, Hamilton did say that prayers to “Allah” would be permissible, but what Senator Inhofe’s statement leaves out is both the context and the full content of the statement. Hamilton was asked in the post judgment motion to rule on whether a prayer can be addressed to “Allah.” Explaining that this is the Arabic word for “God” used in translations of Jewish and Christian scriptures, Hamilton ruled this permissible. He went on to say: “If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others.”

If Senator Inhofe would carefully review the record, either Judge Hamilton’s or his own, he’d see that his pledge to filibuster this nomination is a very poor idea.

We just got word from the Senate Judiciary Committee that Republicans are going to get another shot at questioning Judge David Hamilton, President Obama’s first judicial nominee who is being put forward for a seat on the Court of Appeals for the Seventh Circuit.

Senator Leahy is indeed bending over backwards to accommodate Republicans, who, as we’ve reported, threatened to filibuster the President’s judicial nominees before a single name was put forward and who boycotted Hamilton’s first hearing, because they claimed they did not have enough time to prepare, prompting Senator Leahy to ask their questions for them.

As Senator Leahy said in making the announcement of this rare second hearing, “It has been four weeks since Judge Hamilton first appeared before the Committee, and I am disappointed that Committee Republicans have yet to ask a single question of this nominee.” Hopefully, this time the Republicans will show up and ask their own questions. Judge Hamilton is eminently qualified for this position – his nomination should not be further delayed.

I’m just back from the Senate Judiciary Committee hearing on the nomination of Judge David Hamilton to the Court of Appeals for the Seventh Circuit, which the Republicans on the committee boycotted because they claimed they had not been given sufficient time to prepare for the hearing. In an ironic twist, the hearing was held in a small room off of the Senate floor—the same room that Senator Leahy, the Chair of the Committee, used to continue holding hearings on President Bush’s judicial nominations in the immediate aftermath of September 11th.

As Senator Leahy noted today, the Democrats on the Committee have a better record of pushing through Republican judicial nominees than the Republicans had when they were in charge. Yet today, the Republicans once again were all about trying to delay the process, and we’re now even seeing complaints that the hearing was moved to the Capitol, a move which actually helped accommodate Senators who needed to be on the floor to vote on budget amendments.

In the absence of the Republicans, Senator Leahy ended up asking Judge Hamilton about cases that Senator Specter had identified as potentially problematic – in other words he asked the Republicans questions for them!

David Hamilton is eminently qualified to sit on the Seventh Circuit. We hope the Committee will move his nomination forward when the Senate returns from its upcoming two-week recess.

Late last week several leaders of the Right, including Tony Perkins, Edwin Meese, and Alfred Regnery issued a statement opposing the nomination of David Hamilton (currently the Chief Judge of the Southern District of Indiana) to the Seventh Circuit Court of Appeals.

Among other things the statement recycles the screed working its way through the right wing blogoshpere that treats Hamilton's one-month job as a canvasser for ACORN thirty years ago when he was twenty two as if it constitutes a major portion of his career. And it repeats the gross mischaracterization of a decision by Hamilton that police shouldn’t be allowed to violate “the privacy and sanctity of family relations” by directing a school social worker to interrogate a nine-year old student to get evidence against her mother.

And, now, for the first time as far as I’m aware, the statement levels charges that Hamilton ruled that prayers to Jesus Christ offered at the beginning of state legislative sessions were impermissible, but that prayers to Allah were not.

Of course, that’s not an accurate reading of Hamilton’s opinion. Rather, he concluded, as the Supreme Court has said, that “any official prayers [must] be inclusive and non-sectarian and not advance one particular religion.” And he found, based on an in-depth analysis of the record, that the official prayers being offered in the Indiana House in fact “repeatedly and consistently” advanced the Christian belief in the divinity of Jesus, and as such, were impermissible. He also said that Muslim prayers that similarly advanced the Muslim faith were also impermissible, but that the one and only instance of a prayer being offered by a Muslim imam “was inclusive and was not identifiable as distinctly Muslim from its content.”

A debate on the merits of judicial nominees is perfectly appropriate. But let’s at least get the facts straight.

People For the American Way president Kathryn Kolbert appeared recently on the David Bender Show on Air America to talk about President Obama’s judicial nominees.

Even before Obama nominated a single person, GOP Senators threatened to filibuster his nominees. These are the very same Senators who were pounding their fists over President Bush’s nominees and clamoring for the “nuclear option,” which would have obliterated the filibuster.

Great editorial in New York Times this morning recognizing the hypocrisy of Senate Republicans threatening to filibuster President Obama's judicial nominees well before any are named and urging Senator Leahy to let the blue slip process -- under which senators get a way to block judicial nominees from their home state -- die quietly. The editorial very eloquently echoes some of the most important points People For the American Way has been making for weeks, and it is definitely worth reading.

When President George W. Bush was stocking the federal courts with conservative ideologues, Senate Republicans threatened to change the august body's rules if any Democrat dared to try to block his choices, even the least-competent, most-radical ones. Filibustering the president's nominees, they said, would be an outrageous abuse of senatorial privilege.

Now that President Obama is preparing to fill vacancies on federal benches, Republican senators have fired off an intemperate letter threatening -- you got it -- filibusters if Mr. Obama's nominees are not to their liking. Mr. Obama should not let the Republicans' saber-rattling interfere with how he chooses judges.

I'm sitting in the Senate Juduciary Committee executive meeting where Senator Leahy confirmed what we had been hearing -- despite the fact that David Ogden's nomination to be Deputy Attorney General was reported out on a vote of 14-5, with three Republicans including the ranking member in support -- the Republican caucus is going to filibuster the nomination on the floor. All this because Ogden had the temerity while in public practice to stand up for the First Amendment and a woman's right to choose.

Senator Leahy also flagged the absurdity -- which People For noted earlier this week -- that the entire Republican caucus is threatening to filibuster President Obama's judicial nominees even before a single nomination is put forward. Senator Leahy noted that Republicans and their allies may want the President to fail, but that the American people surely do not. For the good of all of us, he said, President Obama needs to succeed. And that certainly means moving the President's nominees through expeditiously.

By the way, the final votes on the nominations of Elena Kagan -- who will be the first woman confirmed as Solicitor General -- and Tom Perrelli -- nominated to be Assistant Attorney General -- were both held up by the Republicans at the last executive meeting. The vote today? 13-3 and either 17-1 or 16-2. (There was some confusion about the last vote - will report back when it's clarified.)

UPDATE: So, it looks like the planned filibuster of the Ogden nomination may be losing some steam. Thanks to Senator Leahy for exposing the Republican obstructionism to the light of day. Also, the Committee has clarified the vote on Tom Perrelli's nomination: it was 17-1, with Senator Coburn as the only "no" vote.

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

...

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

"Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")

"Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and

a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.

President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees. And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

Just last week I wrote about the Republicans as the Party of NO after their reflexive and not very wise decision to prevent two DOJ nominees, Elena Kagan and Tom Perrelli, from being voted on in Committee. This week they were at it again with a threat to filibuster President Obama's judicial nominees before a single nomination has even been submitted. You can read our Right Wing Watch post on their hypocrisy here. And you can read People For president Kathryn Kolbert's statement here. I particularly like her pointing out that Senate Republicans, who argued vigorously against filibusters in their previous incarnation apparently "have the collective memory of a goldfish."

I’ve seen some concerns expressed about the possible nomination of Mark Gitenstein to head the Justice Department’s Office of Legal Policy, including questions about whether he’s sufficiently committed to protecting the rule of law to serve in the position at Justice involved in selecting and vetting potential federal judicial nominees. I want to weigh in on this conversation because I know Mark well.

I worked very closely with him when he was serving as Senator Biden’s Chief Counsel on the Senate Judiciary Committee and I was counsel to Senator Howard Metzenbaum. If you’re looking for someone committed to the rule of law, no need to look further. Mark can claim a lifetime of service to advancing the cause of civil rights and civil liberties in this country. As chief counsel to Senator Biden, Mark fought against the confirmation of federal judicial nominees who were not committed to protecting the civil rights and individual liberties of all Americans. He worked tirelessly in his position with Senator Biden to help protect the Civil Rights Commission and to extend the Voting Rights Act.

As counsel on the Senate Intelligence Committee he played a leadership role in the oversight investigation of the FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and other civil rights and anti-war activists. He played a key role in the development of FISA, which grew out of that investigation.

As an advisor to Senator and presidential candidate Biden, Mark helped focus on the plight of the shrinking middle class advancing measures such as reforming health care to permit middle class and disadvantaged families to buy into the same health care insurance program available to members of Congress and expanding the availability of health insurance for children and expanding employer based retirement programs.

Mark has the smarts, integrity and values that we need in someone heading this critical office.

With just over a week to go until the election, things are popping at People For. I want to let you know how we're using your support to make an impact on many fronts.

The Voters Alliance: Building Progressive Power

People For the American Way's federal political action committee is helping build a progressive majority in Congress. We were thrilled that an extremely successful online contest run by the Voters Alliance raised more than $130,000 for 24 progressive House candidates. And now the Voters Alliance is working with Oscar-winning director Errol Morris and volunteers from the award-winning advertising firm Chiat Day (of Apple fame) to create short but powerful online profiles of moderate voters who have decided that Obama has earned their vote. The spots are being digitally filmed and edited this week in time for a final pre-election push. I'll let you know when they're ready to watch online and forward to your friends.

Sounding the Alarm: The Court is at Stake

People For the American Way has succeeded in getting media and progressive candidates talking about the importance of the Supreme Court in this election. Now we're kicking it up a notch, with TV spots for Maine, Minnesota, New Hampshire, North Carolina and Oregon, reminding voters that senators have hurt their interests by backing Bush's extreme judges. People For the American Way Action Fund has been running radio ads holding John McCain and other senators accountable for voting to confirm Bush's worst judicial nominees.

Confronting Homophobia and Anti-Gay Discrimination

In California, where the Right has stirred a vicious backlash against a state Supreme Court ruling protecting marriage equality, People For the American Way Foundation's African American Ministers Leadership Council has launched a radio ad campaign calling on African Americans to reject anti-gay discrimination. Check out the ads here. This work is part of a long-term effort to engage clergy and challenge homophobia in the Black Church and in African American communities. Rev. Kenneth Samuel, the courageous and inspiring head of AAMLC's Equal Justice Task Force, is on the ground in California now, and he'll be leading this groundbreaking effort to create social change in the months and years ahead.

Calling out the Promoters of Fear and Hatred

We're also challenging campaign tactics that are stirring up a dangerous brew of fear and bigotry. For example, when John McCain falsely accused a progressive voter registration group of trying to steal the election, its offices were barraged with hateful and threatening messages. We made it impossible to ignore this hostility and bigotry by posting images and audio of the actual messages online for the world to see. And with a full-page ad in the New York Times and other media outreach we have worked hard to help people understand that bogus charges of voter fraud are meant to give cover to the real threat to the election from right-wing voter suppression. Our Right Wing Watch blog has been all over the Religious Right's bigotry and fearmongering.

Overcoming Voter Suppression

People For the American Way Foundation's Democracy Campaign staff have been traveling the country training community organizers who are running election protection efforts and distributing in-depth, state-specific voter protection toolkits. With the help of SEIU, NAACP, NEA, Unity 08, Democracia Ahora and other partners, our Foundation has distributed more than 180,000 palm cards in key states to help voters understand and protect their rights. The Foundation is working with allies to recruit poll workers where they're sorely needed and will be distributing inexpensive video cameras to members who will document what happens on Election Day. There's no way to stop all the dirty tricks that the Right has in store, but People For Foundation has been working hard to put protections in place, and after the election it will work hard to figure out what went wrong this time, and fight for legal and regulatory fixes. Two New York Times editorials in the past week have confirmed that voter fraud is a myth and affirmed the importance of the Election Protection work the Foundation is doing to help voters understand and assert their rights.

Change is in the air, but as you know, it doesn't just happen. We all need to make it happen. With your help, we and our allies are going to change the country! Thanks so much for making it all possible.

Individual Rights, Access to Justice ThreatenedPresident Bush's final State of the Union address will in part be an effort to shape the public view of his presidency. But here's something he won't say: a long-lasting part of his legacy will be the weakening of Americans' rights and legal protections due to the dangerous state of the federal judiciary created by judges he has placed on the federal bench.

An editorial in today's Washington Post calls on the Senate to act quickly on President Bush's nominees to the Fourth Circuit. But as PFAW Legal Director Judith E. Schaeffer pointed out in a Letter to the Editor, the Post has ignored serious concerns that make these nominees very controversial, and the Senate should not rush to confirm them. You can read that letter below: